SHEIKH FAKIR Vs. MOSLEM MANDAL

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of plaintiffs right to irrigate their lands ka (1) and ka (2) of the plaint, from the tank described in Sch. kha, by easement and prescription and as an ancient grant and also for an order of permanent injunction restraining the defendants from putting obstruction and further for compensation for loss caused by the defendants not allowing the plaintiffs to irrigate their lands from the tank. The trial Court decreed the suit in part against the contesting defendants 1 to 3 and ex parte against the rest, allowing the plaintiff to irrigate ka (2) land from the tank. This appeal is by the defendants as regards ka (1) land for which also the plaintiffs suit was decreed by the Court of appeal below. The lower appellate Court held that the plaintiffs were entitled to irrigate the land ka (1) in consequence of a grant from the landlord to be inferred from immemorial user, the finding being that the land ka (1) is being irrigated from the disputed tank from time immemorial.

(2.) This appeal is argued on the ground that to prove a lost grant something more than immemorial user must be proved, viz., it must be shown that there is no other source of irrigation of that land whereas in fact, in this particular case there is another tank Nutanpukur situated very close to the plaintiff's land and from which also they are accustomed to irrigate the land. Dattapukur from which they claim to irrigate is much further away. Further it is mentioned that the plaintiffs have not shown that they used the water of this tank as of right and there is no finding to this effect. In support of the theory that something further than immemorial user must be shown, the case of Venkenna V/s. Swetachalapati Ramakrishna Ranga Rao Bahadur Guru 1931 PC 128 was cited but that case is no authority for this proposition. There it was held that where it was established that from a long period second crop was grown and the necessary water for it could not be had in ordinary years without erecting a dam such long continued user thus proved is sufficient to raise a presumption of a lawful origin of the right to do so in the nature of an arrangement between the parties. That is an example of how immemorial user may be proved indirectly, but it is still immemorial user from which the grant is referred; of course if long continued use may be explained in some other way than by a grant, the grant will not generally be inferred. But there is plenty of authority for holding that it is open to the Court to infer a grant from immemorial user alone when such user is open, as of right, and without interruption. In this case the finding is that this tank was re-excavated in 1322 by the defendants with whom it was settled in 1322 and the plaintiffs took water from the tank to irrigate their land both before and after this settlement and re-excavation. The fact that the plaintiffs took water after the re-excavation goes to confirm the inference that probably there was an original grant from the landlord allowed for at the settlement. It has been pointed out by the lower appellate Court that the patta by which the defendants received settlement has not been produced. It is suggested that the use may have been permissive but that does not seem very probable inasmuch as apparently there is no necessity for using the water of this tank as the closer tank could have been used. But the fact that there was no necessity does not of course show that there was no original grant.

(3.) For the defendants-appellants no alternative explanation of the immemorial user has been offered. They maintain that there was no such immemorial user but on that point we are bound by the finding of fact arrived at by the Court below. The learned Subordinate Judge relied upon the statement of P.W. 1 who spoke of user for forty years at least. His age is sixty eight and he says that from the time he reached understanding he remembers that the tank was so used. Another contention raised by the appellants is that by the re-excavation the user has been interrupted but that does not appear to have been the case because both before and after the excavation, the tank was so used and it appears that there is a channel leading from the tank up to the field though it is said that the channel was originally constructed for inflow of water from the fields to the tank.